Bridgeport Board of Education v. NAEG RI 200

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Superior Court of Connecticut.

Bridgeport Board of Education v. NAEG, Local RI–200

CV136022668S

-- August 22, 2013

MEMORANDUM OF DECISION

FACTS

The Plaintiff, Bridgeport Board of Education, brings this action seeking to vacate an award issued by the Connecticut State Board of Mediation and Arbitration on January 9, 2013.

The award concerns Adam Cleveland, who was employed by the Bridgeport Board of Education as a custodian, beginning in February of 2007.   The Defendant, NAEG, Local RI–200, is the authorized bargaining agent concerning Adam Cleveland.

The underlying facts reveal that on June 25, 2011, Adam Cleveland sent a package of written and printed materials to various supervisors, employees and officials of the City of Bridgeport.   The materials, which were attached as Exhibit B to the Plaintiff's Motion to Vacate Arbitration Award, were addressed to “Larry OsBourne” (sic), at 45 Lyon Terrace the address of Bridgeport City Hall.

In the packet of materials, Adam Cleveland identifies himself as a custodian, and claims to have been the victim of a campaign of harassment orchestrated by one Jorge Garcia, who served as Operations Supervisor for the Bridgeport Board of Education.

It is alleged that Garcia made untrue statements concerning Adam Cleveland, and had singled him out for special treatment.   He alleged that Garcia accused him of making a threatening phone call to a female supervisor, a charge which was not proven, and was disavowed by the supervisor in question, one Lenora Elem.

The packet contained handwritten material, including a note requesting a meeting to discuss the situation, along with Adam Cleveland's address and telephone number.   It contained various emails, and definitions of legal terms.   The printed materials also included descriptions of the Columbine High School and Virginia Tech shootings, along with a prediction that the behavior described by Cleveland might precipitate an incident.

Copies of the packet were sent by Adam Cleveland to the offices of NAEG, Local RI–200, the collective bargaining unit to which Cleveland belonged, the Office of the Mayor, the Bridgeport Police Department, and the Office of Labor Relations.

Upon receipt of the materials on June 28, 2011, Lawrence Osborne contacted the Bridgeport Police Department.   Adam Cleveland was subsequently arrested, and charged with threatening, and harassment.

On June 28, 2011, Adam Cleveland was suspended by the Bridgeport Board of Education, with pay.

On December 23, 2011, following an investigation, he was terminated from his employment, effective January 12, 2012.   In the letter of termination, violations of three of the Work Rules and Regulations of the City of Bridgeport were cited.   The three provisions, numbers 5, 9 and 14 read:

5. Physical violence, fighting or promoting a fight on city property.

9. Behavior that disrupts the work environment to include indecent, inappropriate or immoral conduct.

14. Foul and abusive language directed at co-workers, visitors, clients or taxpayers.

The Board of Education further found that Adam Cleveland's conduct constituted a “grave offense,” and that just cause for his termination from employment existed.

The Defendant, NAEG Local RI–200, filed a grievance on Adam Cleveland's behalf, pursuant to the provisions of the applicable collective bargaining agreement.

Three days of hearings were conducted before the Connecticut State Board of Mediation and Arbitration, June 6, 2012, July 25, 2012, and September 11, 2012.

The issue submitted to the Board of Mediation and Arbitration, by agreement of the parties, was an unrestricted submission.

It read:

Did the City of Bridgeport have just cause to terminate Adam Cleveland pursuant to the Collective Bargaining Agreement?

If not, what shall the remedy be?

The Board rendered a unanimous written decision on January 9, 2013.

The panel found that progressive discipline had been applied to Adam Cleveland, and that the incident concerning the packet of materials was a “serious offense.”   It further determined that certain individuals had cause to fear for their lives as a result of the materials, and that under “normal circumstances” the Bridgeport Board of Education would be justified in terminating the employment of Adam Cleveland.

However, the panel noted, pursuant to Article 33 of the Collective Bargaining Agreement, that an Employee Assistance Program (EAP) is available to Adam Cleveland.   It further observed that the Collective Bargaining Agreement permits employees to seek help if they suffer from an addiction or medical condition, and that management may refer an employee to the Employee Assistance Program (EAR) on its own motion.

Furthermore, the three-member panel found that Adam Cleveland's actions represented a “cry for help,” and were the result of frustrations with his employment situation.

The panel opined that Adam Cleveland felt singled out by Jorge Garcia, and believed that no one was available to help him with the situation.

The panel, based upon three days of hearings and its review of the evidence and the record, determined that Adam Cleveland's discharge from employment was “not for just cause.”

However, notwithstanding that finding, the arbitration panel did not order the reinstatement of Adam Cleveland to his position as a custodian, in the employ of the Bridgeport Board of Education.

Instead, the Award required Adam Cleveland to submit to the Employee Assistance Program (EAP), for an evaluation, and a psychiatric work up.

Only if Adam Cleveland successfully completed the appropriate program, and was deemed by medical professionals to be capable of being reemployed, would he be restored to his position.

If Adam Cleveland declined to submit to the EAP program, or failed to satisfactorily complete the program, his discharge from employment would be upheld.

From this award, the Bridgeport Board of Education brings this action, and asks that the arbitration award of January 9, 2013 be vacated.

STANDARD OF REVIEW—ARBITRATION AWARD

Courts have endorsed arbitration as an effective means of settling disputes, in a forum which avoids the formalities, delays, expense and the vexation of ordinary litigation.  City of New Haven v. Local 844, Council 4, 237 Conn. 378, 386 n.8 (1996);  O & G/O'Connell Joint Venture v. Chase Family Ltd. Partnership No. 3, 203 Conn. 133, 145 (1987).   Courts favor arbitration, because it is a creature of a contract between the parties, and requires a minimum of judicial intrusion.  AFSCME, AFL–CIO Council 15 v. New Britain, 206 Conn. 465, 469 (1988);  Bic Pen Corporation v. Local No. 143, 183 Conn. 579, 583 (1981).

In the case of an unrestricted submission, such as the submission in this case, three grounds for vacating an award have been recognized:  1) the award rules on the constitutionality of a statute, 2) the award violates a clear public policy, and 3) the award contravenes one or more of the statutory proscriptions of General Statute § 52–419.  Harty v. Cantor, Fitzgerald & Co., 275 Conn. 72, 84–85 (2005);  Garrity v. McCaskey, 223 Conn. 1, 6 (1992).

Section 52–418 of the General Statutes reads:

Upon application of any party to an arbitration, the superior court for the judicial district in which one of the parties resides or, in a controversy concerning land, for the judicial district in which the land is situated, or, when the court is not in session, any judge thereof, shall make an order vacating the award if it finds any of the following defects:  1) if the award has been procured by corruption, fraud, or undue means, 2) if there has been evident partiality or corruption on the part of any arbitrator, 3) if the arbitrators have been guilty of misconduct in refusing to postpone the hearing upon sufficient cause shown or in refusing to hear evidence pertinent and material to the controversy or of any other action by which the rights of any party have been prejudiced;  or 4) if the arbitrators have exceeded their powers or so imperfectly executed them that a mutual, final and definite award upon the subject matter was not made.

The Plaintiff, Bridgeport Board of Education, challenges the award of the panel of arbitrators, claiming that its enforcement would violate a clear public policy against violence in the workplace.

While a claim is also raised, that the arbitrators exceeded their powers in a manifest disregard of the law, that claim is essentially subsumed in the claim that enforcement of the award would violate public policy.

When an arbitration award is challenged on public policy grounds, a two-step analysis is required:  1) the court must first determine whether an explicit well defined and dominant public policy can be readily identified, and 2) if so, does the enforcing of the award violate that public policy.  State v. New England Health Care Employees Union District 1199, AFL–CIO, 271 Conn. 127, 137 (2004);  State v. AFSCME Council 4, Local 387, AFL–CIO, 252 Conn, 467, 476 (2000).   When a party challenges a consensual arbitration award on the ground that it violates a clear public policy, and where the challenge has a clear, colorable basis, the court must undertake a de novo review of the award, to determine whether it violates public policy.  Schoonmaker v. Cummings & Lockwood of Stamford, P.C., 252 Conn. 416, 429 (2000).

The party challenging the award on public policy grounds bears the burden of proving that the award conflicts with a clear public policy.   The public policy exception must not be interpreted so broadly as to swallow up the general rule that courts will defer to the determination of the arbitrators.  Hartford v. Hartford Municipal Employees Association, 134 Conn.App. 559, 568 (2012).   When a challenge to the arbitrator's authority is made on public policy grounds, the court is not concerned with the correctness of the decision, but with the lawfulness of enforcing the award.  State v. AFSCME Council 4, Local 387, AFL–CIO, supra, 474–75.

ENFORCEMENT OF THE ARBITRATION AWARD DOES NOT VIOLATE PUBLIC POLICY

In challenging the award on public policy grounds, the Bridgeport Board of Education claims that there exists in the State of Connecticut a strong public policy against workplace violence.

The Defendant, NAEG Local RI–200, does not seek to contest that assertion, and acknowledges well established public policies in Connecticut “․ against workplace violence, threats and harassment, and public policies in support of school safety ․” in its opposition to the motion to vacate arbitration award (p. 8).

Therefore, the question presented is whether enforcing the unanimous award rendered by the arbitration panel in this case violates that strong public policy.

The fact that there is a strong public policy against certain misconduct does not require an employer to terminate every employee who engages in that misconduct.   The question is whether the employee's misconduct was so egregious, that it requires nothing less than termination of the employee so as not to violate public policy.  State of Connecticut v. AFSCME Council 4, Local 391, 309 Conn. 412, 420 (2013);  Brantley v. New Haven, 100 Conn.App. 853, 863 (2007).

Based upon the unrestricted submission, the arbitration panel declined to limit its options to either reinstating Adam Cleveland immediately, or upholding his termination from employment.   Instead, consistent with both the applicable Collective Bargaining Agreement and the unrestricted submission, it pursued a third, very creative alternative.

In order to secure reinstatement as a custodian, Adam Cleveland must agree to participate in, and successfully complete an EAP program.   The award requires that he be evaluated by competent medical personnel, before returning to his employment.

This approach recognizes and respects the strong public policy involving workplace violence, while also recognizing that the parties bargained for the inclusion of an EAP program before entering into the Collective Bargaining Agreement.

The arbitration panel has directed that the EAP program be employed, before the ultimate sanction of termination from employment is implemented.   This approach is consistent with the nature of the arbitration process, and the public policy concerning workplace violence.

Simply because there exists a recognized clear and dominant, public policy against workplace violence, does not mandate that in every instance, an employee must be terminated, without regard to the facts and circumstances of a particular case.

To adopt a Draconian imperative, and require that an employee be discharged whenever an act of workplace violence is established, would undermine the arbitration process to which all parties have agreed, as a result of collective bargaining.

The unanimous vote of the arbitration panel in this case resulted in a thoughtful, well reasoned decision, based upon a weighing of the evidence presented, during the course of a three-day hearing.

The award is not violative of the public policy concerning workplace violence, and will not be disturbed.

A different result might be required, had the panel confined itself only to the remedies of discharge from employment or reinstatement, and elected to reinstate the employee to his position without the need for medical clearance.

The cases cited by the Board of Education in support of the proposition that termination is mandatory, due to the public policy against workplace violence, are not persuasive.

State v. AFSCME Council 4, Local 387, supra, involved a racist message left on an answering machine of a member of the General Assembly.   The message was anonymous, and it was determined that state resources had been used by the offending employee.

In this case, the arbitration panel did not vote to immediately reinstate the employee, or to minimize his conduct.   The panel provided for additional hurdles which the employee must clear, prior to reinstatement.

The packet of materials was not sent by an unknown individual, and was interpreted by the panel as a “cry for help.”

State v. Council 14, AFSCME, 27 Conn.App. 635 (1992), is also distinguishable.   The public policy identified in that case was the embezzlement of public funds.   Although termination was required in that case, even in the case of embezzled public funds, it has been held that the employer is not required by law, to terminate the employee.  Groton v. United Steelworkers of America, 254 Conn. 35, 47 n.11 (2000);  Board of Education v. Local 566, Council 4, AFSCME, 43 Conn.App. 499, 501 (1996).

The panel of arbitrators was not required to defer to the remedy selected by the Bridgeport Board of Education, so long as the enforcement of the award does not violate public policy.

The remedy provided in this instance was appropriate, and fact-based.

The motion to vacate the arbitration award is DENIED.

RADCLIFFE, J.

Radcliffe, Dale W., J.

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